92 Decision Citation: BVA 92-05998
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-20 796 ) DATE
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THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
heart disability.
2. Entitlement to service connection for defective hearing.
3. Entitlement to service connection for visual impairment.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
W. Pope, Counsel
INTRODUCTION
The veteran had active service from December 1950 to December
1952.
Service connection for a heart disability was denied by a
rating action in April 1987. The veteran was notified, but
did not appeal the determination. In January 1991 the
veteran filed claims for entitlement to service connection
for defective hearing and visual impairment, and reopened
his claim for entitlement to service connection for a heart
disability. A rating decision of February 1991 from the
Nashville, Tennessee, Regional Office, hereinafter RO, denied
all three claims. The notice of disagreement was received
on March 7, 1991. The statement of the case was issued on
March 21, 1991. The substantive appeal was received on
April 11, 1991. The appeal was received at the Board of
Veterans' Appeals, hereinafter the Board, on May 10, 1991,
and was docketed on May 13, 1991. The veteran is represented
by The American Legion, and that organization submitted a
written argument on the veteran's behalf on June 10, 1991.
In July 1991 the Board remanded the appeal to the RO, in
order to provide the veteran with information concerning his
attempt to reopen his claim for service connection for a
heart disability. The supplemental statement of the case
was issued on August 21, 1991, and indicated that new and
material evidence had not been received since the April 1987
denial which would warrant reopening of the claim for service
connection for a heart disability. The appeal was again
received at the Board on November 12, 1991, and docketed on
November 15, 1991. The veteran's representative received
the case on November 18, 1991, and submitted additional
written argument on his behalf on January 16, 1992.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative contend, in essence, that
service connection should be established for the disabilities
at issue because they were incurred during his active serv-
ice. The veteran asserts that he has defective hearing due
to acoustic trauma during service. He also asserts that he
began wearing glasses after having the measles in service.
In addition, he asserts that he was excused from heavy duty
due to chest pain during service and that a doctor had
informed him that he must have something wrong with his
heart.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the appellant has not submitted
new and material evidence to reopen his claim of service con-
nection for a heart disability, and that the preponderance
of the evidence is against the claims of service connection
for defective hearing and visual impairment.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable disposi-
tion of the veteran's appeal has been obtained by the RO.
2. By rating decision of April 1987, entitlement to service
connection for a heart disability was denied; the veteran
did not perfect an appeal following that decision.
3. No additional evidence has been received since the April
1987 denial which would tend to establish that the veteran
has a heart disability due to his active service.
4. The first evidence of defective hearing was many years
after the veteran's separation from service.
5. The veteran's current visual impairment is not the result
of acquired eye disease which had its onset in service.
CONCLUSIONS OF LAW
1. The rating decision of April 1987 which denied service
connection for a heart disability was final and new and
material evidence warranting reopening of the claim has not
been received. 38 U.S.C. §§ 1110, 5107, 5108, 7105 (1991);
38 C.F.R. §§ 3.104, 3.156, 19.129 (1991).
2. The veteran's defective hearing was not incurred in or
aggravated by wartime service; nor may a sensorineural defec-
tive hearing be presumed to have been incurred during such
service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (1991);
38 C.F.R. §§ 3.307, 3.309 (1991).
3. The veteran's current visual impairment is not the result
of acquired disease or injury which was incurred in or aggra-
vated by wartime service; refractive error is not a disease
or injury within the meaning of applicable legislation pro-
viding for compensation benefits. 38 U.S.C. §§ 1110, 5107
(1991); 38 C.F.R. § 3.303 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board notes that the veteran's claims are
well grounded within the meaning of 38 U.S.C. § 5107, and
that all relevant facts have been properly developed for
pursuit of this appeal by the RO. Correspondence from the
National Personnel Records Center in St. Louis, Missouri,
disclosed that searches for the veteran's service medical
records were unsuccessful and that his service records may
have been among those destroyed in a fire at that facility
during July 1973. Further development is not indicated as
sources of postservice medical treatment are not shown.
I. Heart Disability
The rating decision of April 1987, which denied service con-
nection for a heart disability, is final with respect to the
evidence then of record; the claim may not be reopened unless
new and material evidence is received. Under decisions of
the United States Court of Veterans Appeals, evidence is "new
and material" when it is not cumulative of evidence previ-
ously considered, is relevant and probative of the issue at
hand, and raises a reasonable possibility that, viewed in
the context of all the evidence of record, both old and new,
it would change the outcome of the claim. See Colvin v.
Derwinski, U.S. Vet. App. No. 90-196 (March 8, 1991), and
Smith v. Derwinski, U.S. Vet. App. No. 89-13 (March 15,
1991).
The evidence considered by the rating board in April 1987
consisted of Department of Veterans Affairs, hereinafter VA,
outpatient treatment records from June 1985 to October 1986
and the veteran's contentions. The treatment records were
negative for findings indicative of a heart disability.
The evidence received since the April 1987 rating action con-
sists of VA treatment records from November 1986 to September
1987, a report of a VA examination in November 1987 and VA
outpatient treatment records from May 1989 to March 1990.
Although the veteran asserts that he has had chest pain since
service, the first evidence of such a symptom was substan-
tiated during a November 1987 VA examination when angina
pectoris was diagnosed, approximately 35 years after the vet-
eran's separation from service. Moreover, there has been no
evidence submitted which raises a reasonable possibility of
changing the outcome of the veteran's claim of service con-
nection for a heart disability. This additional evidence
only confirms that he currently suffers from heart disease.
Accordingly, the Board finds that the evidence received since
the April 1987 decision does not constitute new and material
evidence, and that the claim for service connection for a
heart disability is not reopened.
II. Defective Hearing
The examiner indicated that a hearing loss was claimed, but
not noted when the veteran underwent a VA examination in
November 1987. In February 1990, the veteran reported a 10-
to 15-year history of decreased hearing acuity when he was
evaluated for a possible retrocochlear lesion. Audiometric
examination disclosed bilateral sensorineural hearing loss.
A history of military noise exposure was reported by the
veteran. In the absence of objective evidence substantiating
defective hearing until several decades after the veteran's
separation from service, the Board finds that the preponder-
ance of the evidence is against the veteran's claim for
service connection for defective hearing.
III. Visual Impairment
The medical records substantiate that the veteran's current
visual impairment is refractive error. Under the law, a
grant of service connection and compensation for refractive
error is proscribed by 38 C.F.R. § 3.303(c). The Board
wishes to point out that the veteran's refractive error is
not treatable in the sense that it can be cured. The treat-
ment is to use corrective lenses, which the veteran does, to
obtain normal vision. As noted during a VA examination in
November 1987, the veteran's refractive error was corrected
to 20/40 bilaterally. Acquired eye disease has not been
identified. In the absence of evidence of an acquired chronic
visual impairment during service or currently, the Board finds
that the preponderance of the evidence is against the veter-
an's claim of service connection for defective vision.
ORDER
In the absence of new and material evidence, a claim for
service connection for a heart disability is not reopened,
and the appeal is denied.
Service connection for defective hearing and visual impair-
ment is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
STEPHEN L. WILKINS U. H. ANG, M.D.
DANIEL J. STEIN
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991)
(formerly § 4066), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of Disagree-
ment concerning an issue which was before the Board was
filed with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.